Health and Community Care Committee, 12 Dec 2000

Meeting date: Tuesday, December 12, 2000

Official Report 234KB pdf

---

Complaints System (Public Sector Ombudsmen)

The next item on the agenda relates to the modernisation of the complaints system. The Executive is consulting on the role of ombudsmen in the complaints system in Scotland. We have taken written evidence from a number of organisations and members should have been issued with information—which arrived on Friday—from the Scottish Association of Health Councils. The question is whether we wish to take further evidence or whether we are happy to formulate a response on the basis of our discussion today and the written evidence that we already have.

Given that we received some information rather late on—Customer Management Consultancy, for example, provided a detailed response—we should consider the matter differently. Other committees are involved. I have a problem with some of the responses that have come in, primarily from organisations involved in the health sector, because they have taken a narrow approach. Some groups are trying to protect their areas, rather than considering how to meet the needs of the individual. Mary Scanlon and I had a brief chat before the meeting about the matter. It might be helpful if we talked to the other committees that are involved, perhaps forming a cross-committee group to consider the issue.

The response would have to be finalised at our meeting on 10 January to fit in with the consultation. If members wanted the committee to undertake additional work, that would have to be carried out in the recess and certainly before the meeting on 10 January.

I did not download this on Friday because I was up north. However, from a quick glance, the CMC paper appears to be excellent. Paragraph 2.2 contains nine points of concern. We should take it seriously. We should not rush into this, because the proposals on the ombudsman are important not only for us, but to the whole system of openness, transparency and accountability.

I support Margaret Jamieson's point about an all-party, cross-committee group. On reading the paper, I have decided that I would favour a debate in the Parliament to clarify, scrutinise and pull the strands together—we are talking about creating a one-stop shop. The issue would lend itself to a full debate.

I have two major concerns. First, we have talked about simplification and clarity, but the submissions from the health boards go in the opposite direction. We have an opportunity to make the system simple and easily understood so that the communication channel is good. Secondly, we are talking about setting up a new organisation on top of the Scottish Health Advisory Service and the Mental Welfare Commission for Scotland, but no one knows what their role would be in relation to the office of the ombudsman. If a person has a problem with a mental health issue, should they go to the Mental Welfare Commission or the ombudsman? Recent reports by SHAS and the Mental Welfare Commission point out that the problems that they highlighted 10 years ago still exist. The ombudsman might have a little more clout. I want to know how the organisations will interact and whether they will be integrated.

Presumably the remit of the Mental Welfare Commission for Scotland is under review, in relation to the work of the Millan committee. It will be difficult to get a definitive decision on how the organisations will fit together.

That point is mentioned throughout the submissions. We do not want too many organisations, because that would become confusing.

The committee should discuss family health services. Will the system be the same for general practitioners? Do people go to the General Medical Council, the British Medical Association or some other organisation?

The debate should be slightly wider. I want to know how the arrangements will impact on existing organisations. In that respect, I favour an all-party cross-committee group to examine the situation. More than that, I want clarity in the debate.

Given the time of year, we have to deal with the issue of timing. To fit into the consultation process, our response to the paper must be finalised at the committee meeting on 10 January. We can find out whether we can put that back by a week—I do not think that that will kill anyone. However, Mary Scanlon raised wider questions about committee briefings on the current procedure of dealing with complaints about the health service and how the different organisations that deal with complaints fit together. For example, we can only conjecture what is going to happen to organisations such as the MWC. It would be useful for the committee to have such information so that we can consider the issue on 10 January.

If members have any other concerns or requests for information on the consultation document, they should let the clerks know by 19 December; that will enable the clerks to pull together information for members to read over the recess.

We need to find out what the impact of a one-stop-shop ombudsman would be not only on health but on local government issues. The Local Government Committee is taking evidence on the matter this afternoon; over the next few days, I will talk to the convener of that committee about its plans and whether we can link our work and make available the information in the written submissions that we have received. In that way, we will be better placed to pull together some thoughts when we discuss the issue on 10 January.

The key points have been summarised in the written submissions. The questions that members will want to consider include whether a one-stop shop would be beneficial; whether the remit should be limited to maladministration—indeed, from the evidence of constituents who have come to me over the years, it might have been helpful for ombudsmen to have shown some latitude on that issue; how people submit complaints; how those complaints are investigated; and, finally, the thorny issue of enforcement.

An appendix to one of the submissions focuses on what happens in other countries and indicates a fair split between countries where ombudsman systems do not have rights of enforcement and others where they do. In a wonderful example, the Spanish call their ombudsmen "the defenders of the people"; ombudsmen there seem to have considerable powers. Whether we want a defender of the people is one thing; however, it is a moot point whether we want a new one-stop-shop ombudsman to have powers of enforcement. If members come up with comments on those issues, we can pull together a report on 10 January.

If we are seeking clarity before 10 January, one point gives me some concern. Page 6 of the Scottish Parliament information centre paper says:

"The Ombudsman can investigate complaints against hospitals, community health services or family health services"

over the

"failure to purchase or provide a service you are entitled to receive".

I may think that I am entitled to a facelift on the NHS.

This is the point at which everybody else is supposed to say, "Oh no, not at all."

The crucial point is the difference between what we think we are entitled to and what the NHS can provide. It is has to be clear what we are entitled to on the NHS. Entitlement is at the heart of most problems in the service. I do not want a facelift, by the way—I am happy with what I have.

We will pick up on the issue that Mary Scanlon has raised. Members should e-mail other points that they would like clarified to the clerks before 19 December. The clerks can pull together that information and circulate it to members over the next few weeks, so that we can deal with it at our meeting of 10 January. In the meantime, I will ask the convener of the Local Government Committee about what that committee is doing. Is everybody happy with that?

Do we agree to suggest a full debate on this matter?

We can clarify that. I agree that we would benefit from a debate on this issue at some point. However, the Parliamentary Bureau may already be planning one, because a consultation exercise is under way. If a debate is not already planned and members agree, we can suggest that this would be a suitable topic for a debate. Is everyone happy with that approach?

Members indicated agreement.

There are some further complications. One of the questions that I would like to ask when we deal with the care regulation bill that is about to be introduced is how people can make complaints against non-NHS hospitals and nursing homes. At the moment they can do that only if the care is paid for by the NHS. Private purchasers have no complaints mechanism. That issue needs to be addressed.

We can ask whether the Executive intends to follow up that suggestion.

The issue is wider than that. There is no mechanism for individuals to make a complaint against dentists who operate in the private sector and do not undertake national health service work.

We can clarify whether the Executive intends to widen the remit of the ombudsman to cover any health care that is provided to an individual, irrespective of whether it comes from a private or a public source. We must ensure that people have protection and that they are able to make complaints about a service that has failed them.

In the case of dentists, there is already a facility for people to make complaints, through the professional bodies.

The same applies to doctors, through the GMC. That is the point that we need to clarify.

It is difficult for constituents to make complaints via that route.

This relates to the point that Mary Scanlon made earlier. We will ask the clerks and the researchers in SPICe to find out what complaint mechanisms exist for private patients of private dentists and for patients who have operations in national health service hospitals. If we cover all the areas that people would expect the committee to cover—nursing homes, community care services and health services—so that we know how the current system works, by 10 January we will be in a much better position to make comments on the proposal for establishing an ombudsman.

Might the ombudsman's remit extend to unqualified people practising various forms of so-called alternative medicine?

That is an interesting point, on which we can ask the researchers to come back to us. We may decide in January that we do not want to pursue it, but it would be worth our while raising it with the Executive. That sector is expanding, and the Executive may want to consider the point that Dorothy-Grace Elder has made.

Alternative medicine is almost uncontrolled at the moment.

My other question is to do with appointments. It is fundamental that the individual—or group of individuals—appointed is perceived to be independent. Could SPICe find out how ombudsmen are appointed in other countries? We have a good note from SPICe on the functions of ombudsmen in other countries, but I would like to know how they are appointed and their relationships with their national Parliaments or, as in the case of Spain, with their regional Parliaments. Is there any interplay between the Spanish ombudsman and the regional and national Parliaments in Spain?

That will give our researchers quite a lot to be getting on with in the run-up to Christmas. Are there any other points, or are members happy with that?

I have a query about point 49 in the document "Joint Response from Scottish Parliamentary Commissioner for Administration, Health Service Commissioner for Scotland and Commissioner for Local Administration in Scotland". Should the staff of the new office be in the UK civil service or should they be in the Scottish civil service? I know that that is a contentious issue, but I would have thought that, as the staff will be answerable to the Scottish Executive, they should be employed as members of the Scottish civil service.

I believe that the contract of Scottish civil service staff advises them that they are still part of the UK civil service. Please put that question in writing, so that we—

It is in the document at either point 4.9 or 49.

If members have other points for clarification, they should send them to the clerks by 19 December.

The point on which I would like clarification can be found in the joint response document under section K, which is headed "Finance and Staffing". Point 49 says:

"It will be necessary to specify in the legislation what the status of the staff of any new institution is to be – whether members of the UK Civil Service or employees of a separate body".

While we can clarify that point, I think that you will find that Scottish Executive civil servants are still bound by a contract that says that they are part of the UK civil service. That is probably what point 49 means.